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Requirement of Notice of Cancellation
To avoid the requirement of supplying the homeowner with a Right to Cancel the Contract, you must have one of the follow: A fixed location in Ohio where your goods and services are regularly offered at a business establishment at a fixed location, open to the general public and the buyer initiates the contact between the parties for the purpose of negotiating a purchase. Or The buyer has initiated the contact and specifically requested the seller to visit the buyer's home for the purpose of repairing or performing maintenance upon the buyer's personal property. (Note: If, in the course of such a visit, the seller sells the buyer additional services or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the sale of those additional goods or services does not fall within this exclusion.) If you do not qualify for these and the solicitation is at the buyer’s home you must provide a completed “NOTICE OF CANCELLATION.” There are strict requirements for the presentment of this Notice and the language in this Notice. Failure to adhere to these requirements will result in a violation of the Ohio Consumer Sales Practices Act with three times the contract amount in damages (treble), attorneys' fees, and court costs. It is imperative to seek qualified counsel's advise on your business to ensure compliance with the statute. Can you simply change the spelling of a word to distinguish it from an existing Trademark?5/14/2011
If you are filing for a Federal Trademark and the same mark is already registered, simply changing the spelling will not, automatically, differentiate you from the other company.
When there is an alternative spelling or intentionally changed version of an English word, the Trademark examiner will conduct a pseudo mark search of existing Trademarks. This pseudo mark search locates spellings that are very similar or phonetically equivalent to your proposed Trademark. (For example: Kat & Cat would be interpreted as the same mark). The best practice is to create a name that does not illicit comparisons to another company. Google offers a free service called Google Alerts. This service allows you to monitor when your name or your company's name is used online. You can have instant results each time the word or phrase is used online and indexed by Google.
This information will allow you to act quickly if there is infringement or if there is an unauthorized use of your company’s Trademark. Here is a link to the free service: http://www.google.com/alerts In general, infringement can be avoided if it can be demonstrated there was a “fair use” of the work in question. Fair use is proven by showing that proper credits were given to the author of the work and that the portions reproduced were for a limited purpose not in direct competition.
There is no brightline test to determine fair use. To determine if use of a work is "fair" the following factors are considered: 1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. The nature of the copyrighted work; 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; 4. The effect of the use upon the potential market for or value of the copyrighted work. Work created by an employee, within the scope of their position, is presumptively the property of the employer. This is called a “Work for Hire” creation. It is best to have the scope of employment clearly defined so there is no confusion on this point.
The same is not true for Independent Contractors, Freelancers, or Consultants. For these outside contractors you will need a Work for Hire Agreement to ensure you own all rights to the work created. A Work for Hire Agreement only applies to contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas. For more information: http://www.copyright.gov/circs/circ09.pdf. A Trademark is a distinctive word, symbol, phrase, design, or combination of the same, that allows customers to identify the source of goods or services. This allows customers to decipher one product from another when making a decision to purchase.
If you are providing services, you may have a service mark. Generally, the word “Trademark” is used to describe both trademarks for goods and service marks for services. The answer depends on the terms of your license agreement. Every license agreement conveys a part of the owner's "bundle of rights". (For example: the owner of a photography can license that work to be used online to one party and license reproduction in hard copy form to another party). A license can be all rights or just a small portion.
The Copyright owner can reserve the right, in full, to file suit against a potential infringement on the work. This is part of the bundle of rights that can be conveyed in a license agreement. Failure to address this issue in the agreement can cause a potential dispute between the owner and licensee if a suit is filed. A non-exclusive licensee would likely never be able to file suit for infringement. But the extent of a license is not always as clear as the title of the agreement may suggest. |
Elliott Stapleton Attorney with CMRS Law
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